On January 30, 1997, we at annoy.com filed a federal court action seeking
declaratory and injunctive relief challenging the provisions of the Communications Decency
Act (CDA) of 1996 that criminalize any "indecent" computer communication
intended to "annoy" another person. While much of the content on annoy.com
is deliberately provocative and very often, somewhat crass, it mocks the pretensions and
piety of politicians and media alike, and pushes the envelope both from a content and
technological perspective. The CDA’s assault on the First Amendment cannot be
countered with subtleties. As word about annoy.com spread and participants began
expressing themselves in our free-for-all gibe section, the expression, unfettered of
course, of many of the postings demonstrated how important it is for us to engage in
dialogue, rather than be silenced by fear and irrational technophobia. The less brazen of annoy.com
users enjoyed, and continue to enjoy, being able to send anonymous emails to politicians
or private digital postcards to friends.

In an order issued the day following ApolloMedia's filing, United States District Judge Maxine M.
Chesney stated, "In reviewing a request to convene a three-judge panel, the district
court's inquiry is confined to 'determine whether the instant complaint possesses a
reasonable degree of legal merit'." She found that ApolloMedia's facial challenge to
the Communications Decency Act brought our action within the Acts provisions for convening
a three-judge panel. On March 3, 1997 Procter Hug Jr., Chief Judge of the United States
Court of Appeals for the Ninth Circuit appointed Michael D. Hawkins (United States Circuit
Judge for the Ninth Circuit) and Susan Y. Illston (United States District Judge for the
Northern District of California) to sit with Maxine Chesney to hear ApolloMedia
Corporation v. Janet Reno.

On April 8, 1997, annoy.com and Janet Reno agreed to halt proceedings, in order
to allow the government to attempt to formulate opposition to our claim that would hold an
iota of constitutional muster, and at the same time, allow the three appointed judges the
opportunity to be guided by the Supreme Court’s decision in Reno v. ACLU - an
appeal that the government ultimately lost which dealt with a similar, yet distinct
provision of the CDA dealing specifically with communications relating to minors, (and in
which ApolloMedia filed an amicus curiae brief). The condition was that the government,
Reno or any of her various renegade departments were absolutely prohibited from
investigating annoy.com, let alone prosecuting, until our day in court.

On June 20, 1997, the government sent us a set of interrogatories – a series of
nosy questions designed to garner information from us that would assist them in their
"discovery" in preparation for their defense. Among the documentation requested
was a list of names of people who were directly or indirectly participants on annoy.com
and questions such as what we believed we had done to violate the CDA
provisions in question.

The intrusive tone of the interrogatories, requesting documents that would reveal
private information about the users of annoy.com demonstrated quite clearly that
the government had ignored the findings of the Supreme Court in Reno v. ACLU. The
government’s demands reinforced our assertion that the legislation would allow the
government to wield enormous power by eavesdropping on the conversations of private
citizens, stifling expression, and threatening the speech-enhancing and commercial
potential of the Internet.

Expressing our concerns to the Attorney General,
essentially that, given the nature and tone of the interrogatories, answering questions
posed could potentially result in self-incrimination, we inquired about immunity for
answers to questions we believed would implicate me, and violate my Fifth Amendment
self-incrimination protections. The government responded by stating that ApolloMedia could
no longer claim Fifth Amendment privilege against self-incrimination. Given that I was to
be signatory to the interrogatories, and because I had earlier submitted a declaration
discussing the desire of visitors to annoy.com to communicate indecent, annoying
messages to public figures, public officials and private persons, the government asserted
I had waived my Fifth Amendment privilege. Citing United States v. Patricia Hearst,
the government claimed that that the discovery requests were "reasonably
related" to the subject matter of my declaration, and therefore, like Patty, I had to
respond to the interrogatories. Given some of the content on annoy.com, and our
First Amendment challenge, some people of ill-intent or with only a surface understanding
of the issues have compared me to Larry Flynt on occasion, but Patty Hearst is a bit of a
stretch.
Far from being granted any
kind of immunity, the government made it crystal clear that we were bound to comply fully
with the discovery requests and said the Fifth Amendment did not apply to us. In our
formal response to the interrogatories, we stated that "although couched as formal
discovery, these interrogatories and document requests are nonetheless a government
investigation, the very sort of enforcement activity that was enjoined in Reno v. ACLU
and that should be enjoined here". We proclaimed that the government's inquisition
itself clearly violates our First Amendment rights. We refused to provide any names of
participants on annoy.com, and refused to speculate as to whether we had violated
the provisions of the CDA, since they are to vague and ill-defined for us to make such an
assessment. And, of course, why we filed the lawsuit to begin with.

In spite of the increasingly chilling tone of the government’s position, and
unwilling to be intimidated by grandstanding, threats and mind-boggling comparisons to
terrorists and traitors, we refused to release the names of private users of annoy.com.
We have not been asked again.

Irked by our steadfastness, Reno’s counsel requested that we allow the government
to go to annoy.com in order to test out some of the technological features. We agreed on
the condition that the government provide us with the IP address (a number that uniquely
identifies the user) and that they only be able to access pre-defined areas of annoy.com.
We never heard back from them!

Once the government realized that we were fighting this battle with weaponry that
included sophisticated technology and legal muscle that run rings around Reno’s legal
eagles, their tactics took a three hundred and eighty degree turn. The government came up
with a brand new theory of the case -- that we don't need to worry about
"indecent" communications, only "obscene" ones.

And to this end, the government and court's definition of obscene, is that which is
collectively obscene, lewd, lascivious, filthy or indecent. The media coverage of the
content on annoy.com, and the conventional understanding of these words
demonstrates that there is very little difference among their meanings and definitions.
Each of them essentially means the same thing. Indeed, the court did acknowledge that
common usage of the words have different shades of meaning, but that the statute has
always been taken as aimed at obnoxiously debasing portrayals of sex. Obnoxiously debasing
portrayals of sex are only obnoxious insofar as they are offensive or punishable, and in
my opinion, the notion of administering punishment for the mere portrayal or depiction of
sexuality is more debasing in nature than the simple expression of it.

However, despite Reno’s
assurances that we have nothing to worry about, the government submitted the testimony of
Howard Schmidt - one of their expert witnesses, the essence of which suggested that
indeed, we have plenty to worry about. Howard Schmidt goes by the title of Supervisory
Special Agent, Deputy Chief of Computer Crime and Information Warfare for the Air Force
Office of Special Investigations (OSI). The OSI undertakes investigations related to
criminal and counter-intelligence matters for the United States Air Force and Department
of Defense. OSI also assists a range of Federal, State and local law enforcement agencies,
such as the Department of Justice, the U.S. Postal Service, the U.S. Secret Service, and
other military investigative agencies, in connection with various types of
criminal/counter-intelligence investigations. And all this time, silly us, we thought annoy.com
was simply an entertaining web site and channel.

The government further indicates
that the Supreme Court has held that this string of words ending in "indecent"
simply means "obscene", for the last forty years. Forty years ago, society's
standards were significantly different to what they are today, and more importantly, we
were not capable of communicating with such ease on a global scale with such a vast array
of different languages, cultures, religions and societies. To be bound by constructs of
forty year-old interpretations, governing a different medium is outrageous. It is
equivalent to the FDA simply applying the guidelines governing the intake of barbiturates
to new drugs like AZT, even though it's an entirely different drug that is made of
different compounds and capable of producing completely different side effects.
In 1973, the Supreme Court
attempted to define obscenity in Miller v. California, 413 U.S. 15, 24 (1973), by
establishing a three-part test for obscenity: "hard core" sexual material that
appeals to the prurient interest; is patently offensive under community standards; and
lacks serious literary or other value. Each of the three parts of the Miller test
must be met to criminalize even obscene speech. Miller was decided two decades
before the Internet emerged. Now, nearly twenty-five years later, the government is still
referring to Miller as the defining principle, despite the fact that the three-part
test requires that community standards be applied to determine what is offensive. The
major flaw with applying Miller to the Internet as a medium is that the community
on the Internet is a global one, making it impossible to even define the make up of the
community, let alone apply standards to it.

Several members of the Supreme Court have expressed their dissatisfaction with the Miller
test even as to obscenity. And of course, the world authority on artistic merit and
foreign relations, Senator Jesse Helms declared in the Congressional Record that written
"safe sex" educational materials were "obscene." Thus a seductive
courting dance of a native African tribe, performed purely for the prurient interest, and
regarded as a fundamentally accepted cultural ritual, for instance, might be regarded as
not only obscene, but blasphemous by Jesse Helms in North Carolina.

Yet, despite disparity and
confusion among legislators, legal authorities and the media, we are to believe and take
comfort in the government’s assurances that we have nothing to worry about. Even if
we were to attempt, with strong imagination, to apply Miller to a different medium
like the Internet, it would be impossible to determine what is and is not permissible by
virtue of the fact that there are inadequate laws or guidelines regarding the
jurisdictional governance of Internet communications. What may be permissible according to
community standards in San Francisco, California may be impermissible in San Diego,
California or Calcutta, India.

If I was to ask you to "choose a side" in Afrikaans, the language of a small
minority of white South Africans, the translation would be "kies ‘n kant"
pronounced "kiss a cunt." Will the audio transmission of anything in Afrikaans
be felonious under the CDA? What about someone hailing from Bangkok? Most analysis in the
courts and in the media to date has failed to take into account that the Internet is a
multilingual, multimedia communications instrument. Filtering devices such as Cyber Patrol
cannot interpret visual elements with any degree of consistency, any more than optical
character recognition technology can interpret audio, or contextualize language.

Miller also stipulates that
obscenity is established if "the work, taken as a whole appeals to the prurient
interest" and "depicts in a patently offensive way, sexual conduct, excretory
functions, and lewd exhibitions of the genitals." I do not understand why an image
word, depiction or expression of anything that is appealing to the prurient interest is
obscene, nor upon what such a notion is based other than on some specific religious
principles, which in themselves should be separated from the law. (Prurient of course,
having the same "shades of meaning" that make it difficult to determine what
might be felonious, and therefore easier simply to chill the expression).

I do not understand how or why the covering of a nipple - puzzlingly, female nipples
are somehow more offensive than male nipples according to American contemporary community
standards - or the penis or vagina detracts from the prurient interest. If a woman’s
breasts turn me on, are nipple caps going to quell my desire? If a penis turns me on, will
the presence of a G-String quell my desire? Similarly, I do not understand how the image
or description of a person engaged in sexual or excretory functions appeals, necessarily,
to the prurient interest. Between you and me, the thought of someone taking a shit is not
exactly a turn on. To each, their own, sure, but let’s not make blanket assumptions,
and let’s not assume further that people are going to uncontrollably orgasm every
time they’re exposed to a sexual or excretory depiction, image or sound, and even if
they do, that it’s necessarily a threat to civilization as we know it.

How many of you have never
played with your genitals or taken a dump? I do not understand why it is not permissible
to depict sexual or excretory activity - the most natural and fundamental and base
activities of most species - yet it is okay to display, depict and transmit the most
hideous, reprehensible, sick, nauseating, ugly, revolting, patently offensive depictions
of violence, brutality, degradation and bloodshed. According to this logic, it is a threat
to society for children to see other humans engaged in pleasurable acts, making love or
ridding their bodies of toxins. But splattered brains from a bullet to the head, violent
responses that teach children to approach life’s problems by harming, hurting and
destroying one another is acceptable and contributes to our spiritual growth and evolution
as a civilized and more enlightened species.

In this context, I am truly baffled as to how we are supposed to interpret obscenity,
who it's supposed to protect, what it's supposed to accomplish, and most significantly,
how we are supposed to feel relieved by the government’s contention that indecent
means obscene.

Nor is it irrelevant that enforcement of this
criminal statute inevitably will involve widespread eavesdropping or other participation
by government agents and vigilante groups in the online conversations of ordinary
citizens. That is, unlike complaint-activated monitoring of public broadcasts by the FCC,
enforcement of the CDA necessarily will involve reading, snooping on and recording the
electronic communications of unsuspecting and wholly innocent citizens. For example, when
a vigilante group tips law enforcement that a certain web site or newsgroup involves the
"patently offensive" discussion of abortion, safe sex or erotic literature, Big
Brother government will log on and listen to the conversation, recording at will. When a
prosecutor thinks he or she can get a conviction in a particular community intolerant of
such discussion, the conversation can be downloaded -- with a mouse click -- to that
venue. Hundreds of persons' thoughts and ideas will become "evidence" in a
criminal prosecution.
With regard to the "intent to
annoy" defense of the government, I am even more in the dark as to what the
government is stipulating. They submit the "intent" requirement makes Section
223 constitutional by removing a perceived privacy problem, without addressing the fact
that the very nature of annoy.com makes it impossible to determine the
"intent" of the sender since their communications are anonymous. Further, there
is no distinction between what is considered "annoying" versus that that is
"abusive threatening or harassing". We are not demanding a constitutional right
to threaten politicians and public figures by chasing them through tunnels and killing
them in the process. Simply to be able to communicate with them through a medium and in a
manner that is generally less dangerous than eating an apple.
My attorneys, William Bennett Turner
and Michael Traynor, both of whom I respect and admire deeply, and whose passion for the
principles of the First Amendment parallels their legal ingenuity, have provided me with
an understanding as to why legally and tactically, it is preferable to proceed
step-by-step, seeking in this case a declaratory judgement that the CDA is
unconstitutional insofar as it punishes indecent communications with an intent to annoy
and by injunctions against enforcement. I should be relieved by the government’s
announcement that "indecent" means "obscene" as defined in Miller
as it is highly unlikely that I could be prosecuted for obscenity. This means reserving
for the present time a challenge to the obscenity provisions of the CDA and the pervasive
provisions in other laws, federal and state, against obscenity.

But, if the truth be told, I find little or no guidelines or solace in the distinction
between indecency and obscenity. Both definitions remain unconstitutionally vague and
inadequate as a standard, particularly one by which to approach a modern and unique
medium. Especially one characterized not only by words and images, but also by audio,
interactivity and imagination. I continue to feel that the definitions of obscenity are
based primarily on Judeo-Christian constructs governing sexuality and morality, and serve
no useful or legitimate purpose in protecting anyone from anything. Even if we win this
case, which I am confident we will, this battle is far from over. Our First Amendment to
the Constitution is still, very much, at stake.